Contracts must comply with law

I made an agreement with a Dutch firm operating in Abu Dhabi, on their in-house format (in English language only) in 2011. According to the agreement, they gave me a daily work rate of Dh400 per day and it said that leave, travel accommodation and end of service benefits are included in the salary. As per the agreement, I was not entitled to annual leave, and tickets and salary were to be given on the number of actual days worked per month. I had no job so I had no choice but to accept it.

Two weeks later I joined that company and they gave me another Labour Agreement (in Arabic and English), which mentioned that my monthly pay would be Dh12,200 with basic Dh8,000, accommodation Dh4,000 and transportation Dh200 with one month paid leave. That agreement was signed by me and the company HR manager.

However, over the past one and a half years, I am getting salary on the number of days worked per month which varies between 20 and 23. Therefore, I get only between Dh8,000 and Dh9,000. I told them about the labour agreement which says monthly salary of Dh12,200 and one month’s leave per year. But the HR coordinator of the company said he is not aware of such an agreement and asked me to leave if I wished to do so. He said the agreement is for Dh400 per day, only with no leave and no benefits which I had signed earlier. After this, I insisted they gave me 15 days’ leave with ticket and said that this is, in fact, extra and over and above the agreement.

Can you please advise me on what options I have? I want to contest my salary and leave for the one-and-a-half-year period. Where should I go to apply and what documents do I need for legal proceedings? And can the contractor fire me from the job based on my legal action? My principal client wants to retain me. And please advise, how much time will this process take?

It is understood that your employer first provided you with an offer letter stating the terms of your employment, which you accepted. Subsequently you and your employer executed a bilingual employment contract and filed the same with the Ministry of Labour.

It is evident that the bilingual employment contract executed between you and your employer, filed with the Ministry of Labour, is advantageous to you. Any contract which contradicts the provisions of Federal Law No. 8 of 1980 of the UAE on labour relations shall be deemed null and void in accordance with Article 7 of the Federal Law No. 8 of 1980 which states: “Any stipulations contrary to the provisions of this Law, even if it was made prior to its commencement, shall be null and void unless they are more advantageous to the worker.”

Based on the terms of the bilingual employment contract executed between you and your employer, you are entitled to 30 days of paid annual leave for each completed year of employment with your employer in accordance with Article 75 of Federal Law No. 8 of 1980 which states: “Every worker shall, within each year of service, be granted a period of annual leave of not less than:

(a) Two (days) a month, where the worker’s period of service is more than six month but less than one year;

(b) 30 days a year, where the worker’s period of service is more than one year.

Where a worker’s service is terminated, he shall be entitled to annual leave in respect of fractions of the last year.”

Your employer should provide you with a return air ticket to avail your annual leave, if your employer is obliged to provide you with a return air ticket pursuant to the term’s bilingual employment contract executed by you and your employer. However, in the event your employer terminates your services, your employer shall provide you with a one way air ticket for you to return to the country/city where you resided prior to taking up employment in accordance with Article 131 of the aforementioned law which states: “An employer shall, on the termination of a worker’s contract, defray the cost of returning him to the district from which he was recruited or to any other place agreed upon between the two parties. Where after the termination of his contract, a worker enters the service of another employer, the latter shall defray the worker’s travelling expenses on the termination of his service. Subject to the provisions of the preceding sentence, if the employer fails to return the worker or to defray his travelling expenses, the competent authorities shall do so at the employer’s expense and may then recover any expenditure incurred in this connection by attachment. Where the reason for the termination of the contract is attributable to the worker, his travel shall be at his own expense if he has the wherewithal to pay.”

In the event your employer terminates your employment pursuant to you exercising your right to file a complaint against the employer, it would be a case of arbitrary dismissal in accordance with Article 122 of the Federal Law No. 8 of 1980 which states: “A worker’s service shall be deemed to have been arbitrarily terminated by his employer if the reason for the termination is irrelevant to the worker and, more particularly, if the reason is that the worker has submitted a serious complaint to the competent authorities or has instituted legal proceedings against the employer that has proved to be valid.”

Further, your employer may be required to compensate you for terminating your employment arbitrarily in accordance with Article 123 (a) of the aforementioned law which states: “Where a worker is arbitrarily dismissed, the competent court may order the employer to pay him compensation. The court shall assess such compensation with due regard to the nature of the work, the amount of prejudice he has sustained and his period of service, and after investigating the circumstances of the work. The amount of the compensation shall in no case exceed the worker’s remuneration for three months calculated on the basis of the last remuneration he was entitled to.”

Article 123 (b) states: “The provisions of the preceding shall not prejudice the worker’s right to the gratuity he is entitled to and the termination notice allowance provided for in this law.”

It may be argued that the bilingual employment contract filed with the Ministry of Labour supersedes the offer letter initially furnished by your employer. Therefore, you may claim your salary and other benefits in accordance with the bilingual employment contract filed with the Ministry of Labour. Further, in order to claim your entitlements, you may file a written complaint with the office of the Ministry of Labour in Abu Dhabi.

You should carry with you the bilingual employment contract and your labour card for filing a complaint at the Ministry of Labour against your employer.

In the event you and your employer are unable to reach a settlement within 10 days from the date you filed the complaint at the Ministry of Labour, the Ministry of Labour will refer the dispute to the courts of competent jurisdiction in accordance with Article 156 of the Federal Law No. 8 of 1980 which states: “Where the mediation of the competent labour department does not lead to a settlement of the dispute within 10 days of its learning of the occurrence of the object of the dispute, it shall refer the dispute to the competent conciliation board for decision and shall at the same time inform both parties in writing.”

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Woman sponsor

We are contemplating hiring a lady to work as a Marketing Representative. However, one of her requests is that we provide her with the status and salary which will enable her to sponsor and bring her son to Dubai. Can you assist and let us know which position will allow the lady to sponsor her child. And, what is the minimum salary requirement (basic with accommodation or accommodation allowance) to sponsor the child.

It is learnt that a lady who is employed in the UAE as a marketing executive may sponsor her child by obtaining a residence visa for her child if she draws a minimum salary of Dh7,000 plus accommodation. Further, it is learnt that she may be required to hold a valid tenancy contract for her residence issued in her name as at times the General Directorate of Residency and Foreigners Affairs may require a tenancy contract issued in the name of the sponsor of the child. This tenancy contract should be attested by EJARI. The General Directorate of Residency and Foreigners Affairs may require a recent utility bill, as well. However, it is advisable to approach the General Directorate of Residency and Foreigners Affairs to check on their requirements at the time of applying for a residency visa for a child as the requirements may vary from time to time.

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Ashish Mehta, LLB, F.I.C.A., M.C.I.T., M.C.I.Arb., is the founder and Managing Partner of Ashish Mehta & Associates, a legal consultancy firm in Dubai. He also practises in India, United Kingdom and Singapore. He has worked with international and commercial legal procedures, providing analysis and counselling on complex legal documents and policies such as commercial transactions, securitisation, real estate acquisitions, financial restructuring for distressed assets, mergers and acquisitions, arbitration and litigation issues. Readers may e-mail their questions to: news@khaleejtimes.com or send them to Legal View, Khaleej Times, PO Box 11243, Dubai.